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NYABUTO CHARGED WITH OBTAINING 10 MILLION.

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Charles Ondieki Nyabuto before a Milimani Magistrate Court where he pleaded not guilty to obtaining money charge.

BY NT CORRESPONDENT.

A man has been charged before Milimani Law Courts with obtaining 10 Million by false pretenses.

Charles Ondieki Nyabuto who appeared before Principal Magistrate Hellen Onkwani and denied the charges.

He is accused of obtaining the money from one Maurice Owiti by falsely pretending that he was in a position to clear containers from the port of Mogadishu.

Ondieki is alleged to have committed the offence between March 27 and April 1,2019.

The magistrate ruled he be released on a cash bail of Sh 1.5 Million.

The case will be mentioned on July 17 and the hearing will be on August 12, 2019.

DPP WANTS ‘BIAS’ MAGISTRATE OUT OF KEBS CEO FERTILIZER CASE.

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Milimani Principal Magistrate Kenneth Cheruiyot who director of public prosecution out of fertilizer case.

BY SAM ALFAN.

Director of Public Prosecution wants a trial magistrate out of fertilizer case where former KEBS CEO Charles Ongwae and others are charged with attempted murder for allowing the importation of substandard fertilizer containing mercury.

Haji filed application through Senior Assistant Director of Public Prosecution Alexander Muteti seeking Milimani Principal Magistrate Kenneth Cheruiyot to recuse himself from hearing the criminal case.

Prosecution claims the magistrate has exhibited bias while he is handling the case.

“The magistrate had exhibited open bias and taken position that is prejudicial to the right of a fair impartial hearing”, said prosecution.

They claimed that the magistrate is on record admitting that he is handling other matters where accused are involved.

“SPM Kenneth Cheruiyot is on record pronouncing that he is aware of the Kenya Bureau of standards process as such the court has already formed its opinion and pronounced itself before witnesses and evidence is adduced”, said prosecution.

They claimed the magistrate is handling other two criminal matters which have similar issues as such it is in the interest of all parties that the trial magistrate recuses himself from criminal case Number 1151 of 2018.

The said criminal case was scheduled for hearing today and tomorrow and August 13 to15 2019.

Further the prosecution says that for the impartial trial will be highly and irreparably prejudiced if the instant application is not heard and determined before the hearing kicks off.

Investigating officer attached to DCI headquarters Police Corporal Peter Nderitu filed a supporting affidavit adding that on several occasions during the proceedings and specifically on the July 8 this year, trial magistrate Cheruiyot admitted in court and pronounced himself that he is handling other Kenya Bureau of Standards cases and he is aware if the procedures and processes at KEBS based on testimonies from witnesses he has taken their evidence in court.

Ongwae was charged afresh alongside KEBS officials namely Eric Chesire Kiptoo (Director, Quality Assurance), Peter Kinyanjui (Inspection Manager, Kilindini Port), Martin Muswanya Nyakiamo (Coast Region Manager, KEBS) and Pole Mwangeni (Port Health Officer Kilindini) and a KRA official Eric Karimi.

They denied several charges of attempted murder for allowing the importation of substandard fertiliser containing mercury.

The charges against their co-accused person were withdrawn following the plea bargain entered between suspects namely OCP (K) Ltd, its directors Malika Karama and Younes Addou and Benson Oduor Ngesa, a Clearing Agent Bollore Transport and Karimi Lofti Senhadji and the DPP.

On May 9, 2019 the DPP agreed to have the impounded consignment of 3,500 bags of fertiliser held at a godown in Mombasa released.

The fertiliser was impounded in June last year for allegedly containing mercury.

Its release is part of a plea agreement entered into by the DPP, and Senior Counsel Paul Muite acting for OCP (K) Ltd, a Moroccan company, its directors Malika Karama and Younes Addou and businessman Benson Ngesa.

“It was agreed between the parties and the DPP that the investigating officer shall concurrently release the impounded consignment of fertiliser held at Bollore warehouse in Mombasa to the OCP (K) Ltd,” reads the agreement.

BUSINESSMAN PETER NDERITU FAILS TO CONVINCE COURT TO STOP PLANNED DEMOLITION OF PREMISES.

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Pimp My Ride East Africa owner Patrick Nderitu with his lawyer outside Milimani Law Courts building on May 29,2019./PHOTO BY S.A.N.

BY SAM ALFAN.

A Nairobi magistrate has declined to stop planned demolitions of a premises where Simmers Club once stood after its owner rushed to court.

Pimp My Ride East Africa rushed to court yesterday arguing that a notice given to him by the County Government of Nairobi was expiring on July 9.

The owner, Peter Nderitu said he was apprehensive that the county government might descend on the premises and demolish what has been erected on the controversial plot, yet he had obtained all the approvals, including building permits from the county government.

The court, however, certified the matter as urgent and directed Mr Nderitu to serve the County Government ahead of the hearing on July 12.

Mr Nderitu said he has been occupying the premises on the strength of a lease between him and the landlord and all was well until July 2, when he received a seven-day notice stating that the construction was illegal.

He sought orders, restraining the county government from demolishing the property and the OCS central police station to ensure compliance with the said order. While urging the court to order parties to maintain the status quo, Mr Nderitu said he was apprehensive that the impending demolitions would be carried out on the basis of personal vendetta.

“That unless the court urgently intervenes, the applicants are apprehensive that their investment and hard work will end up being ruined thereby occasioning them irreparable loss and damages,” Mr Nderitu said in an affidavit.

DISTRIBUTOR LOSES BID TO GET SH40 MILLION FROM EABL.

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BY SAM ALFAN.

A judge has dismissed a Sh40 million claim against East African Breweries limited, brought by a transport and logistics firm, stating that the case was time-barred.

Justice Jacqueline Kamau dismissed the case by Express Kenya Limited saying that being an action under contract, the firm could not bring a claim after six years.

The Judge added that the firm was seeking to lay blame on the wrong part, after claiming that its advocates failed to file the case on time.

“There was negligence on the part of the applicant’s advocates. However, this was one instance where it could not seek refuge to be excused for mistakes of an advocate. It must look elsewhere for remedy,” the Judge said.

The firm sued EABL after its distribution contract was terminated in 2011 before the three year contract, expired. Documents filed in court showed that the two companies entered into the contract in 2009 but the beer maker terminated the deal on January 10, 2011. Then, the company demanded Sh10 million outstanding.

The transport company argued that whereas contractual matters has to be instituted within six years, there were exceptional circumstances under Section 27 of the Limitation of Actions Act where extension of filing suit could be given.

The firm submitted that it had all intentions of recovering the money and that it wrote a demand letter to EABL, which went unanswered. The court further heard that at some point in 2013, the firm was advised not to file the case as EABL was working out some logistics and would get back.

EABL on its part argued that actions based on contract cannot be brought six years after the cause of action. The court further heard that even with the consent of the parties, a court cannot extend the time for filing a suit based on contract.

In the judgment, Justice Kamau the letter by EABL was equivocal and did not expressly state that the beer company owed Express Kenya ltd, any money. “In fact there was nothing remotely close to indicating that the respondent owed the applicant any monies” the Judge said.

FORMER MAGISTRATE GETS BACK HIS JOB AFTER SUCCESSFUL APPEAL.

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Former Milimani Chief Magistrate Daniel Ochenja who has been reinstated by the court./PHOTO COURTESY.

BY SAM ALFAN.

A magistrate sacked four years ago has been reinstated by Employment and Labour Relations Court.

Daniel Ochenja, a former Milimani Chief Magistrate was reinstated by Justice Lady Hellen Wasilwa saying there was no evidence that Ochenja had failed to perform his duties diligently.

“I therefore order reinstatement of the petitioner to the position he occupied prior to the dismissal with immediate effect without loss of salary and benefit,” ruled judge Wasilwa.

Ochenja started his career as a judicial officer in 1993 and served for 26 years before his dismissal.

The judge noted that for Ochenja to get another job at his age was difficult. She found that that reinstatement was the most plausible remedy.

The judge said it was evident that the disciplinary process was meted against the Magistrate was illegal, unprocedural, unfair and his rights were breached .

” I also find breach in terms of Article 41 if the constitution and other regulations including the Fair Administrative Action Act and Employment Act,” ruled Wasilwa.

Ochenja filed a petition seeking his reinstatement as the Magistrate denying any wrong doing.

He argued that his interdiction was tainted by procedural impropriety by failing to observe rules laid in the legislative instruments by being escalated mysteriously and through a shortcut suspending all mandatory rules.

“The charge was void for lack of accompanying statements as required by the mandatory rules empowering statute,” added the Magistrate.

He said the process was a nullity, unlawful and unconstitutional by failure to institute and commence disciplinary action within reasonable time.

Ochenja further added that he was denied to cross examine his accuser and JSC did not act transparently in the whole process.

He said he was presiding judge on a criminal case No. 1367 of 2014 as a plea court and accused through his lawyer wrote a letter to the court to change the plea.

The letter, he said, was placed before him for directions and he directed the matter to be placed before his court on October 31, 2014 for change of plea.

On the material day, Ochenja was informed by his clerk that the file was missing from the court registry and instructed him to check for the file as he went to preside over other matters.

While the court was in session, a skeleton file was opened without his knowledge and the same was placed before him which was sneaked into court by the court clerk identified as Okoth.

He realised that it was a skeleton file and adjourned the proceedings and summoned one Ruth Nyaga an officer in charge of registry who confirmed that she instructed Catherine a registry assistant to open the file.

After the change of plea , the court convicted the accused and an application was made that the cash bail be converted into fine, which prosecution had no issue with. However, five months down the line, he was served with an interdiction letter.

He later found after enquiry that the original cash receipt for bail could not be converted as fine by the accounts for unknown reasons.

FORMER FAMILY BANK CEO TO APPEAL AGAINST SH30 MILLION AWARD.

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Former Family Bank Chief Executive Officer Peter Munyiri.

BY SAM ALFAN.

Former Family Bank CEO Peter Munyiri Maina  has filed a notice seeking to appeal a decision by Employment and labour Relations Court to award him 30.6 million over unfair withholding of his dues.

Maina filed the notice saying of he was dissatisfied with the presiding judge move to award him ksh30.6 million instead of ksh57 million sought.

“Take notice the claimant being dissatisfied with part of the decision of lady justice Maureen Onyango given on June 14, 2019 intends to appeal to the court of appeal against that part of the decision determining the gratuity rate to be 18% of the annual gross basic salary, failure to award the claimant costs without proffering any reason and failure to offer reasons for declining to award interest, ” reads the notice.

Family bank last month suffered a blow after Justice Onyango Maina Sh 30,655,800 over unfair withholding of his dues.

The Judge awarded Maina the amount for five years as per the appointment letters.

She ruked that there was no dispute that Maina was employed by the bank on a fixed term contract running from July 15, 2011 to July 14, 2016.

“There is further no dispute that Maina is entitled to payment of gratuity for the years he worked for the Bank,” ruled Justice Onyango.

Through lawyer Gibson Kimani, Maina moved to court seeking to be paid ksh57 million dues owed to him by the Bank.

He claimed the bank was unlawfully withholding dues rightfully owed to him.

Maina argued that the terms of employment was a fixed term contract for a period of five years and at the end of which he would be paid gratuity to be calculated at 10% of the gross basic for the year one of the the employment and thereafter the applicable rate will be aligned with the banking industry rate.

The applicant applied to rely on the rate of 31% that was applicable to National bank of Kenya and housing finance company limited which banks are under tire towards the Family Bank.

Munyiri further added that his contract lapses on/or about July 14, 2016 and he was entitles to to gratuity of 30% of his gross salary which was the same as what was provided by other banks.

Family Bank while responding to the case said that Munyiri was not entitled to the relief sought and urged the court to dismiss the same with costs as I is based on erroneous, assumptions and extraneous gratuity rate covering wrong date.

It added that the 31% rate is not applicable but rather 18% of gross basic salary as per the report prepared Price Waterhouse Coopers.

The bank further claimed that the two banks that Munyiri was using as a benchmark are state owned and their gratuity is similar to the rate provides in parastatals.

The bank further argued that Munyiri was duly paid his dues at the time of separation save for gratuity and that the delay was occasioned by lack of standard banking industry rate.

DPP FAILS TO OUST MAGISTRATE IN LAWYER NYAKUNDI MANSLAUGHTER CASE.

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City Lawyer Ass Nyakundi.

BY SAM ALFAN.

It is a big blow to the DPP after a magistrate declines to recuse herself from a criminal case against Lawyer Ass Nyakundi.

While dismissing the DPP application, Senior Principal Magistrate Teresia Nyangena said that prosecution did not have any evidence to support their application for her recusal the manslaughter case against the city Lawyer.

Further, the trial Magistrate said the court has a requisite jurisdiction to hear and determine the case.

“This is founded upon the premise that the Directorate of Public Prosecution having elected under its power to prefer the present charges before this court, I fail to be persuaded by the prosecution’s contention that the court lacks jurisdiction. Am in agreement with the stand taken by the counsel for the defense and the deceased family,” ruled Nyangena.

The magistrate further observed that the last ground of a possible contact with the trial court by unnamed persons with a view to influence the course of the trial is in her opinion the most serious of all grounds adduced and would make or cause any reasonable individual presiding over any tribunal duly constituted should recuse him or herself without any slightest hesitation.

“However, this good sense ought also to be exercised with some a bit of caution. In such instance armed with necessary intelligence or information, the prosecution ought to have been prudent enough to at least share with the court the information it has as to the source, manner and nature of the alleged contact,” ruled the magistrate.

The prosecution had made an application seeking the Magistrate to recuse herself from handling the matter saying the court demonstrated bias in favour of the defense by allowing time to respond to the prosecution’s application for the discontinuance of this proceedings.

They argued that on the same day, the court did not allow them to reply to the application by the defense.

“The court demonstrated open bias by declining the prosecution’s request for more time to reply to the written submissions filed by the defense,” the Prosecution argued.

While opposing the application, Lawyer Danstan Omari for Nyakundi’s wife Lydia Nyakundi and their four children, described the prosecution’s claims as hot air, adding that Ms Mwaniki “is shopping for a friendly court”.

“An application from the DPP for a magistrate to recuse herself  without any evidence is a sure sign of an office that appears confused and in a panic  mode”, said Lawyer Omari.

Lawyer Omari further added that prosecution case is hopeless and ought to be dismissed. He termed prosecution as misuse of court process.

“They are forum shopping which is an exercise in futility. If a case is hopeless any court will dismiss it .The family is so sacrosanct  as per the constitution”, reiterated Omari.

The prosecution further said the court lacked territorial jurisdiction to try the case and the court has been influenced and unable to be objective in the entire process.

KENYA DEFENDS MOVE TO BATTLE BOUNDARY DISPUTE WITH SOMALIA AT ICJ.

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Lawyer Paul Nyamondi for Attorney General.

BY SAM ALFAN.

Kenya justified its full participation in the boundary dispute with Somalia at The Hague-based International Court of Justice (ICJ).

In response to a petition seeking to bar from participating in the maritime dispute, Solicitor-General Kennedy Ogeto explained that the State Law Office, the Foreign Affairs ministry and the Kenya International Boundaries Office “have been taking steps whose ultimate aim is the protection of Kenya’s territorial integrity and political independence as a constitutional democracy.”

Attorney General through lawyer Paul Nyamondi told the court that the Government shared concerns raised by the 20 citizens that the ICJ should not have asserted jurisdiction to adjudicate the dispute.

Lawyer Nyamondi added that Kenya was categorical that “the proposed practical option of Kenya withdrawing from the case before the ICJ is untenable at this point in time.”

The country’s sovereignty was a paramount constitutional edict, he said, and the Constitution binds all public officers to observe national values and principles of governance, including the rule of law.

“Abiding by the rule of law certainly includes participating in court proceedings in which the respective courts have affirmed their jurisdiction over the subject matter, despite a party’s objections having been overruled,” Nyamondi said.

“The fact that the Constitution defines the territory of Kenya and requires that any alteration to the territory must be subjected to a referendum under Article 255 of the Constitution, juxtaposed with the fact that the ICJ has asserted jurisdiction over the maritime boundary dispute, Kenya is now required to participate in the ICJ proceedings.” Ogeto said.

Ogeto added that this means that a balance must be struck between these positions.

Ogeto asserted that the participation of top government officials in the dispute was not a manifest violation of any of Kenya’s internal rules of fundamental importance.

There was no basis for accusations that they have surrendered Kenya’s sovereignty to the ICJ and other entities, or acting in violation of the Constitution, he pointed out.

“Kenya’s continued participation in the ICJ proceedings concerning the maritime boundary dispute is a function of Kenya’s constitutional identification as a democracy founded on the rule of law, and committed to the peaceful settlement of disputes between it and other states, as required under international law, which Kenya’s Constitution itself domesticates,” Ogeto said in an affidavit.

He urged High Court Judge Weldon Korir to dismiss an application by lawyer Kibe Mungai, for the aggrieved citizens, to have Chief Justice David Maraga to appoint an expanded bench to handle the petition.

The contentious boundary dispute has been set for oral hearings between September 9 and 13 at the Peace Palace, The Hague.

A Lobby group Foundation for Dialogue and 19 individuals filed case in court seeking to stop government from defending a case filed by Somalia government against Kenya at the International Court of Justice (ICJ).

The petitioners argue that treaties and laws that Kenya agreed to between 1965 and 2009 removed maritime boundaries from the list of issues that can be determined at the ICJ.

They add that a 2009 memorandum of understanding between Kenya and Somalia resolved to have any maritime boundary disputes between the two nations resolved through negotiations and bilateral talks.

Justice Korir will deliver his ruling on July 11.

JUDGE MUYA OPPOSES ATTEMPT TO MOVE HIS PETITION TO LABOUR COURT.

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Suspended Judge Martin Muya lawyer Philip Nyachoti making submissions before Court.

BY SAM ALFAN.

Suspended Judge Martin Muya has resisted attempts by the Judicial Service Commission (JSC) to have a petition he has filed, challenging his removal, transferred to the Employment and Labour Relations Court.

The judge through lawyer Philip Nyachoti, argued that only the High Court enjoyed exclusive power to interpret the Constitution, unearth violation of fundamental rights and freedoms and grant redress to aggrieved parties.

Nyachoti said the preliminary objection raised by the JSC was incompetent since Muya’s major complaint was that he was not afforded an opportunity by the commission before it made a recommendation to President Uhuru Kenyatta.

The decision was made by JSC on May 18 asking President Uhuru to appoint a tribunal to investigate his alleged misconduct for delaying judgments in two commercial disputes.

He said the recommendation was made “in a highly biased, suspicious and questionable manner.”

“The investigation, suspension and removal of a Judge is a constitutional process which cannot be considered a dispute between an employer and employee. The High Court is the only available forum for Justice Muya to seek redress for violations of his constitutional rights,” the lawyer submitted before Justice Weldon Korir.

He said the President, through formal notices in the Kenya Gazette, suspended the Judge on half pay and appointed a tribunal to investigate allegations of misconduct against him. He said the Head of State was not acting in his capacity as the Judge’s employer.

Justice Muya in his petition, he seeks stay of the report and findings of JSC dated May 8 recommending that the  report be presented to the President  to  appoint a tribunal to investigate into his conduct on  allegations  of gross misconduct.

The tribunal according to the  findings of JSC is to look into misbehavior, breach of the constitution, judicial code of conduct and  ethnics pursuant to the  complaint lodged by the law firm of Onynkwa and company advocates  on 17 August 2017 on behalf of NIC bank limited.

Lawyer Nyachoti  told the court that the presentation of the petition and subsequent appointment of the tribunal can take effect any  time now hence the  urgency of the  the application for conservatory orders.

KCB SEEKS TO BE ENJOINED IN WESTON HOTEL LAND CASE.

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Weston Hotel Gate Nairobi.

BY SAM ALFAN.

Kenya Commercial Bank (KCB) has filed application seeking to participate in the ownership dispute of the controversial land on which Weston Hotel in Nairobi stands on the basis that it is the registered chargee.

The bank said it has beneficial interest in the property, in which the Kenya Civil Aviation Authority (KCAA) secured orders on June 21 blocking the valuation, sub-division, sale and transfer of the land.

“It is necessary to enjoin KCB in these proceedings to protect its interests and enable the court to fully and finally determine the issues arising,” the bank stated in court papers filed by Mohamed Muigai Advocates.

Bank Secretary Bonnie Okumu explained in a supporting affidavit that Weston Hotel received loan facilities of Sh350million and USD1.5million by a charge dated October 9, 2014 that was registered on October 27, 2014. The firm reportedly secured further Sh700million by a further charge dated July 8, 2015 and registered on July 27, 2015.

Okumu said the bank relied on confirmation by the Registrar of Lands that Weston Hotel was the duly registered owner of the property. “If the bank is not enjoined as an interested party, there is a real risk that KCB may be rendered a by-stander as orders which are adverse to its beneficial interests as granted to KCAA,” he said.

” By the virtue of the registered charge and further charge, KCB extended banking facilities to Weston Hotel amounting to Kshs. 1,050,000,000.00 and USD 1,500,000.00″, added the bank.

Environment and Land Court Judge Bernard Eboso imposed sanctions against Weston Hotel Ltd, Priority Ltd and Monene Investments Ltd following an urgent application by the State agency.

The Judge stopped the implementation of the decision made by the NLC on January 25 allowing the owners of the hotel to pay compensation to the agency at the market value to enable it to purchase alternative land. The disputed public land had been acquired by the defunct Directorate of Civil Aviation (DCA) in the early 1990s for the construction of its headquarters.

The disputed public land had been acquired by the defunct Directorate of Civil Aviation (DCA) in the early 1990s for the construction of its headquarters.

Justice Eboso directed lawyer Stephen Biko Ligunya to serve the three firms with court papers to facilitate the hearing of the matter on July 4.

In court papers, KACC argued that Priority Ltd and Monene Investments sold the land to Weston Hotel Ltd in June 2007 at the deliberately undervalued price of Sh10milion. The two firms, the documents state, then embarked on rapid construction without obtaining mandatory development approvals from relevant State regulatory agencies.

“They procured registration as owners of the land through illegality, fraud and corruption and forcibly evicted the DCA and its employees. They forcibly removed the DCA’s costly air navigation equipment and spares and dumped them at sites in Industrial Area and Athi River, causing their degradation from harsh exposure to the elements,” the agency protested in its petition lodged by Rachier and Amollo Advocates.

The owners of Weston Hotel Ltd had deliberately failed to comply with KCAA’s orders to stop construction, despite clear indications that the development along Langata Road posed a threat to air navigation at the adjacent Wilson Airport, the agency said.

“On January 25, the NLC have its determination recognizing and emphasizing that KCAA’s entitlement to and ownership of the land remained unchallenged. The NLC’s decision extensively and justifiably impugned the illegality, irregular and fraud by the three companies, explicitly stating that Priority Ltd and Monene Investments irregularly procured registration of the land,” KACC pointed out.

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